NORRISTOWN, Pa. _ A Montgomery County Count judge on Thursday shot down Bill Cosby's latest attempt to have his sexual assault case thrown out, saying the case could move forward without compelling accuser Andrea Constand to testify before his trial.
In making the ruling, Montgomery County Court Judge Steven T. O'Neill found that prosecutors' decision not to call Constand to the witness stand at a preliminary evidentiary hearing last May was "perfectly proper," as they backed up her claims with her 11-year-old police statement.
"The commonwealth does not have to present live evidence at preliminary hearings," he said.
Cosby's attorneys had urged O'Neill to throw out the case. Attorney Christopher Tayback said that by denying Cosby the chance to confront Constand in court before trial, his rights had been irrevocably violated.
"You have to have some meaningful opportunity to ask questions of the witness whose statement is really the basis of the prosecution," Tayback said.
"Today a man who has meant so much to so many; a man who has given so much to so many; has had his constitutional rights trampled on," said defense counsel Andrew Wyatt after O'Neill announced his decision.
District Attorney Kevin R. Steele maintained that the right to confront witnesses in court does not apply to pretrial hearings, where prosecutors need only show that they had enough evidence to present a plausible case at trial. What's more, he accused Cosby's legal team of using the hearing to try to discredit Constand.
"It's our position that we are not going to re-traumatize victims at preliminary hearings," District Attorney Kevin R. Steele said. "They had their shot at (Constand)."
The hearing, which played out in a Norristown courtroom, was the latest effort from the 78-year-old entertainer's legal team to fight off the sole criminal case to emerge from allegations from dozens of women who say Cosby drugged and sexually assaulted them.
Pennsylvania law on the matter remains unsettled.
Prosecutors typically seek to limit testimony from accusers at preliminary hearings because if they say anything under oath that differs from testimony they offer at trial, defense attorneys can use it to attack their credibility. For that reason, defense lawyers value the opportunity to probe accusers' stories before a case heads to trial because it can expose inconsistencies in an accuser's story.
Earlier this year, the Pennsylvania Supreme Court agreed to review a lower-court ruling in a separate case that approved the use of police statements instead of direct testimony from accusers as prosecutors' sole evidence at preliminary hearings.
Unless the state high court says otherwise, Steele argued in court filings last month, that ruling remains the guiding authority in the state.
At the May hearing in the Cosby case, District Judge Elizabeth McHugh acknowledged Constand's absence from the hearing was a "risky" move for prosecutors, but still approved the case for trial based on lengthy excerpts from her police statements that prosecutors read into the record.
In them, Constand alleged that Cosby drugged and assaulted her in 2004 during a visit to his Cheltenham mansion.
Cosby has repeatedly denied Constand's allegations. While he described a sexual encounter with her in his own statement to police _ which was also read into the record at the hearing _ he described it as consensual. He paid her an undisclosed amount to settle a civil suit.
A trial date has not yet been set for the case.
